Handshear v. Handshear

775 S.W.2d 544, 1989 Mo. App. LEXIS 1077, 1989 WL 82298
CourtMissouri Court of Appeals
DecidedJuly 25, 1989
DocketNo. 54909
StatusPublished
Cited by3 cases

This text of 775 S.W.2d 544 (Handshear v. Handshear) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Handshear v. Handshear, 775 S.W.2d 544, 1989 Mo. App. LEXIS 1077, 1989 WL 82298 (Mo. Ct. App. 1989).

Opinion

KAROHL, Judge.

Husband-father appeals some provisions of a dissolution decree entered after the parties were married just over eight years. The provisions of the decree relevant to his appeal are as follows:

3. Custody of the two minor children [daughter and son] is awarded to Respondent, Maley Handshear. Petitioner shall have right to exclusive temporary custody for a period of 10 consecutive weeks between June 1st and September 1st of each year. During each period of custody, the non-custodial parent shall have exclusive temporary custody on alternate week-ends from 6:00 P.M. to 9:00 P.M. Sunday, every Wednesday night from 5:00 P.M. to 9:00 P.M., on alternating holidays and childrens’ birthdays. Each parent is entitled to take children out of town on vacation or otherwise for a period not to exceed two weeks, so long as said trip does not interfere with school functions. Any loss of custody this may cause to either party will be compensated at the earliest time available thereafter. If either party goes out of town without [545]*545children during the time they have physical custody, the other shall have first choice in whether to assume physical custody during the absence of the custodial parent. Such periods shall not be “deducted” from the period of physical custody to which each parent is entitled, unless it coincides with dates to which they are entitled to custody. Each party is permitted reasonable private phone contact while in the other’s custody. All terms herein are to be liberally construed in favor of parental contact with the children by either parent.
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7. Petitioner is ordered forthwith to designate each of the minor children as irrevocable beneficiary of a life insurance policy aided through work or otherwise with face value of $75,000.00.
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9. Respondent will be permitted to continue living in the marital residence at 14137 Westemmill Drive until the first of the following events occur:
a) Death or remarriage of Respondent.
b) 21st birthday of [son], or emancipation.
c) Home is sold.
When the house is sold, the net proceeds thereof will be divided, after deducting all costs of sale, deed(s) of trust, liens, etc., 70% to Respondent, and 30% to Petitioner. While respondent is living in home, the deed(s) of trust, principle, interest, taxes, and insurance shall be paid 70% by Respondent and 30% by Petitioner. The same liability shall attach to the parties for maintenance and repairs, except that no repairs in excess of $200.00, and no future encumbrance of the property shall be permitted without the written consent of both. Respondent shall be liable for payment of all utilities.

We find the court erred in requiring husband to make his children irrevocable beneficiaries of a life insurance policy. Wife concedes that this court and others have held that it is not a legal requirement for a parent to support children after death of the parent. “A parent in Missouri is not required to support his children after the parent dies.” Metropolitan Life Insurance Company v. Alcorn, 674 S.W.2d 115, 115 (Mo.App.1984). Any attempt to order child support through life insurance is void. Id. at 116. The present order is defective for the additional reason that it would extend the father’s obligation to support the children beyond their emancipation. The provisions of paragraph 7 of the decree misapply the law and are ordered withdrawn.

Husband’s principal complaint is that there was no substantial evidence to support an award of custody to wife-mother. We find there was substantial evidence to support the custody provisions of the decree and that the court did not erroneously declare or apply the law regarding custody disputes. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We also find the evidence supports the finding of fact that the best interests of the children, a daughter age six and a son age four, would be served by an award of permanent custody to mother with extensive, liberal temporary custody for the father. We noted in Goldberg v. Goldberg, 691 S.W.2d 312, 315 (Mo.App.1985) that the paramount consideration remains the best interest and welfare of the child.

The bulk of husband’s evidence is that he was the superior parent. This differs from evidence wife is unable or unfit. His evidence is tainted by the fact that on the date he filed the petition for dissolution, without advance notice, he took the two children from the family home to live with him at his sister’s home. He notified his wife of these acts by leaving a note at the family home. During the pendency of this dissolution case in the circuit court, April, 1986 to April, 1988, husband had primary custody. He rigidly controlled and limited mother’s temporary custody. Father is of one religious belief and mother of another. During the marriage neither parent was active in religious practices for themselves or with the children. However, the religious difference created a past and continuing controversy. On this account, and oth[546]*546ers, the court found the parties were seriously incompatible and incapable of being joint custodians. The court found they were both capable and loving parents.

Both parties offered the testimony of expert and lay witnesses in support of claims that they were and would be good parents. There is an absence of evidence for the proposition that either was unable, unwilling or incapable of parenting the children. Husband claims wife is unfit by reason of an extramarital affair. The record reflects evidence of an extra-marital affair by wife. However, there was no evidence that the children were in any manner involved or that they may have been influenced by such past conduct. Directly, there was no evidence that the moral environment of the children living with their mother would be adversely affected by reason of a past indiscretion. See, Ryan v. Ryan, 652 S.W.2d 313, 315 (Mo.App.1983).

The question is whether there was substantial evidence from which the trial court could find and did find that it was in the best interests of the children for their mother to have custody. We find such evidence in the record. Her testimony supports the award. In addition, the court noted the restrictive or oppressive conduct of husband-father during the separation, while he had custody, and concluded wife “will much more generously share the children’s life and welfare with [husband], than he has been able to do with her.” Dr. Wells Hivley, Ph.D., a psychologist, concluded that the children were coping well, and that each parent is unusually responsible. He also found the children were bonded to each of the parents, and that they have a warm, tender, and affectionate relationship with their mother. A number of witnesses testified that mother was very active with the children in their interests prior to husband’s removing the children from the family home at the time he filed the petition for dissolution.

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Bluebook (online)
775 S.W.2d 544, 1989 Mo. App. LEXIS 1077, 1989 WL 82298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/handshear-v-handshear-moctapp-1989.